Presumptions in law in crimes against women and matrimonial law

Most of the criminal law is based on what society perceives as common sense standards of acceptable or non-acceptable behaviour in a given situation, where one’s actions can cause harm to others for no justifiable reason. For example, murder is a crime in all cultures and societies, because no one wants to risk getting deprived of his/her life at little or no notice; and society has agreed that taking away someone’s life has to have very good reasons for doing it. Same reasoning would apply to lesser crimes like theft — that one cannot deprive another person of property or money by theft/cunning/deceit etc. Even a thief after having committed a theft and not being discovered, wants the protection of law so that his/her (see, we are gender neutral ) ‘goods’ cannot be stolen further by another thief! He/She wants to have the safety under law that those ‘goods’ should be treated as his/her personal possession, and should be safe from theft from then on. If theft was not a crime, even thieves won’t feel ‘safe’.

So basically, some people can be termed as thieves only because there is a law against theft, and they were proven to have committed the crime. If there was no law against theft (but maybe only a moral/ethical code), then some people can be called thieves in manner of speaking, but it will be more of a moral/ethical labelling than labelling someone as a criminal.

Now coming back to topic of post: Is it possible to declare someone a thief without no real evidence of him/her having been involved in a theft?

For crime of theft, this is not the case. But there is another class of crimes called crimes against women, or matrimony related situation;, where law allows a presumption (which can be rebutted with contradicting evidence of course) to be made without a prima-facie evidence in favour of that presumption.

Presumption in law

Presumption

A legal inference that must be made in light of certain facts. Most presumptions are rebuttable, meaning that they are rejected if proven to be false or at least thrown into sufficient doubt by the evidence. Other presumptions are conclusive, meaning that they must be accepted to be true without any opportunity for rebuttal.

Above is an overall meaning of presumption which can apply to both presumption of law and facts. Specifically, this post is about presumption of law which is more tricky because it allows some presumption to be made by court based on certain facts or evidences of a case. Such a presumption in law may be well within broad applicability of what is considered common sense behaviour in a society, and in that case, the presumption in law has the main role of simplifying procedure and administration of law. Or in other cases, it may not be so clear if the conclusion based on the presumption is applicable in all cases, but nevertheless the lawmakers in their wisdom(hopefully) have added that presumption to the body of law. So ignorance of the presumptions in law can be hurtful to those accused or complained against, and can be used lawfully, by the complainant or petitioner.

Presumption in criminal law for crimes against women

Presumption in crime of Rape (IPC 376)

Section 114A of Indian Evidence Act and the following commentaries are taken from 185th report of Law Commission. The report discusses various proposed amendments, and gives the present text of the section and rationale behind its present form.

Section 114A: This section deals with ‘presumption as to absence of consent in certain prosecutions for rape. It reads as follows:

Note: following is the latest version of section 114A as amended by THE CRIMINAL LAW (AMENDMENT) BILL, 2013, which adds for clauses added to IPC 376 but doesn’t change the core premise of the section about presumption of consent. All other commentary is verbatim as per Law Commission’s report.

‘114A. In a prosecution for rape under clause (a), clause (b), clause (c),clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k),clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian PenalCode, where sexual intercourse by the accused is proved and the question is whetherit was without the consent of the woman alleged to have been raped and such womanstates in her evidence before the court that she did not consent, the court shall presumethat she did not consent.

This section was inserted by the Criminal Law (Amendment) Act 1983 (43of 1983) w.e.f. 25.12.1983. This section was introduced because of theincreasing number of acquittals of accused in cases of rape. If she had beenraped at a place where none could have witnessed – as it happens in mostcases – the prosecution would find it difficult to prove the offence beyondreasonable doubt. Sometimes, medical or DNA evidence is available andmore often, it is not available.

The presumption is mandatory but is rebuttable.

There are several judgments of the High Courts which have appliedsec. 114A in cases of rape under sec. 376 of the Indian Penal Code. But weprefer to refer to the two Supreme Court judgments on the point.In Gagan Bihari Savant vs. State of Orissa: 1991(3) SCC 562 theevidence of the prosecutrix showed that she had protested and struggledwhile she was subjected to forcible sexual assault by accused persons. Itwas held that evidence showed absence of consent on the part of the victim,even apart from the legal presumption under sec. 114-A. The SupremeCourt confirmed the conviction of all the persons involved in the gang-rape.

But, in a recent case in Dilip vs. State of M.P.: 2001(9) SCC 452, thepresumption was raised but it was held that in view of the infirmities in theevidence, the place of rape was not proved. It was held that while the soletestimony of the prosecutrix could be acted upon and made the basis ofconviction without being corroborated in material particulars, in view of theinfirmities in the sole testimony of the prosecutrix which contradicted themedical evidence as well as the evidence of the aunt of the victim to whomshe had narrated the incident soon after the commission of the rape, it wasdifficult to accept that consent was not there. On the question of consent,though presumption under sec. 114A was raised, no finding, it was held,need be recorded because of the finding that the prosecutrix was a willingparty. The appeal was allowed and the appellant was acquitted in theSupreme Court.

Presumption in abetment of suicide of married woman

Again, taking relevant portions about Section 113A of Indian Evidence Act from Law Commission’s report. Note the difference between this and previous section, in section 113A, court may (and by logical extension depending on a particular case, it may not) presume, whereas in section 114A court has to presume, but it is rebuttable in both cases.

Section 113A:

This section deals with ‘Presumption as to abetment of suicide by amarried woman’. It reads as follows:

“113A: When the question is whether the commission of suicideby a woman had been abetted by her husband or any relative or herhusband and it is shown that she had committed suicide within aperiod of seven years from the date of her marriage and that herhusband or such relative of her husband had subjected her to cruelty,the court may presume, having regard to all the other circumstances ofthe case, that such suicide had been abetted by her husband or by suchrelative of her husband.

Explanation.- For the purposes of this section, ‘cruelty’ shallhave the same meaning as in section 498-A of the Indian Penal Code(45 of 1860.”

This section was introduced by the Criminal Law (Second Amendment) Act46 of 1983. the Indian Penal Code, the Code of Criminal Procedure, 1973and the Evidence Act were amended keeping in view the dowry deathproblems in India.

The section requires proof that (1) that her husband or relativessubjected her to cruelty and (2) that the married woman committed suicidewithin a period of seven years from the date of her marriage.If these facts are proved, the court ‘may’ presume. The words are not‘shall’ presume. Such a presumption can be drawn only after the court hastaken into account all the circumstances of the case. The inference wouldthen be that the ‘husband or relatives’ abetted her suicide.If there is no evidence of cruelty, the section does not apply. State ofPunjab vs. Iqbal Singh: AIR 1991 SC 1532. In State of Himachal Pradeshvs. Nikku Ram: AIR 1996 SC 67, it was held that in the absence of anyevidence to show that the diseased was being harassed within the meaning ofExplanation I(b) of section 498A IPC, the presumption under sec. 113Acannot be raised.

The Supreme Court, in State of West Bengal vs. Orilal Jaiswal AIR 1994 SC1418 considered the question as to ‘standard of proof’. It observed that in acriminal trial, the degree of proof is stricter than what is required in a civilproceeding. In a criminal trial, however intriguing may be the facts andcircumstances of the case, the charges made against may be in the realm ofsurmises and conjectures. The requirement of proof beyond reasonabledoubt does not stand altered even after the introduction of sec. 498-A in theIndian Penal Code and section 113-A in the Evidence Act. Although, theCourt’s conscience must be satisfied that the accused is not held guiltywhen there are reasonable doubts about the complicity of the accused inrespect of the offences alleged, it should be borne in mind that there is noabsolute standard for proof in a criminal trial and the question whether thecharges made against the accused have been proved beyond all reasonabledoubt must depend upon the facts and circumstances of the cases and thequality of evidence adduced in the case and the materials placed on record.The doubt must be of a reasonable man and the standard adopted must be astandard adopted of a reasonable and just man for coming to the conclusionconsidering the particular subject matter. Reasonableness of the doubt mustbe commensurate with the nature of the offences to be investigated.

Exaggerated devotion to the rule of benefit of doubt must not nurturefanciful doubts or lingering suspicions and thereby destroy social defence.The court should be extremely careful in assessing evidence under sec. 113Afor finding out if cruelty was meted out. If it transpires that a victimcommitting suicide was hyper sensitive to ordinary petulance, discord anddifferences in domestic life quite common to the society to which the victimbelonged and such petulance, discord and differences were not expected toinduce a similarly circumstanced individual in a given society to commitsuicide, the conscience of the Court would not be satisfied for holding thatthe accused charged of abetting the offence of suicide was guilty.The section has also been interpreted in Lakhjit Singh vs. State ofPunjab: 1994 Suppl (1) SCC 173 and Pawan Kumar vs. State of Haryana:1998(3) SCC 309 and Shanta vs. State of Haryana 1991(1) SCC 371.Courts have held that from the mere fact of suicide within seven yearsof marriage, one should not jump to the conclusion of abetment unlesscruelty was proved and the court, which has the discretion to raise or not toraise the presumption, because of the words ‘may presume’, must take intoaccount all the circumstances of the case, which is an additional safeguard.

See Nilakantha Pati vs. State of Orissa: 1995 Crl LJ 2472 (Vol.3).The legal presumption provided in sec. 113A clearly includes pastinstances of cruelty spread over a period of seven years (Vasanta vs. State ofMaharashtra: 1987 Crl LJ 901 (Bom).

The presumption, even if it is raised in a given case, is rebuttable:

Prem Das vs. State of Himachal Pradesh 1996 Crl LJ 951 (HP).Having noted the case law and the problems which have come beforethe courts in the last 18 years, we do not find anything wrong in the sectionwhich requires amendment. While cases of cruelty and dowry death arerampant, a new phenomenon is the abuse of these provisions in some cases.Some of these cases have come up before the High Courts and theSupreme Court. In some cases complaints are made against husbands inspite of there being no cruelty. In some other cases, where there is materialagainst the husband, the husband’s parents or sisters living elsewhere or faraway are all roped in. The result in some cases is that the entire case wouldfail due to over zealousness of the complainants or the police. But, in ourview, the words ‘may presume’ and the requirement that ‘all the othercircumstances’ of the case will provide sufficient ground for the court todeal with such false cases. We do not, therefore, think that any specialamendment is necessary to prevent abuse of sec. 113-A.In the result, sec. 113-A does not require any amendment.

Presumption in Dowry Death (IPC 304B)

Section 113-B:

This section deals with ‘Presumption as to dowry death’. It reads asfollows:

“113-B. When the question is whether a person has committed thedowry death of a woman and it is shown that soon before her deathsuch woman had been subjected by such person to cruelty orharassment for, or in connection with, any demand to dowry, the courtshall presume that such person had caused the dowry death.Explanation: For the purpose of this section, ‘dowry death’ shall havethe same meaning as in sec. 304-B of Indian Penal Code’.

Under the section, it is first necessary to prove that such woman hasbeen subjected by such person to cruelty or harassment and secondly, suchcruelty should have been or in connection with any demand for dowry andthirdly that this must have been soon before her death. If these are proved,the court ‘shall presume’ the person caused the dowry death. Of course, thewords ‘shall presume’ mean that the court is, in such circumstances, boundto presume that such person had caused the dowry death but still thepresumption is rebuttable.

The need for insertion of section 113-B as also sec. 304B in the PenalCode has been stated in the 91st Report of the Law Commission (1983) on‘Dowry Deaths and Law Reform’.

In Shamlal vs. State of Haryana: AIR 1997 SC 1830, the SupremeCourt had occasion to deal with sec. 113-B. It stated that it is imperative,for invoking the presumption under sec. 113-B, to prove that ‘soon beforeher death’ she was subjected to such cruelty or harassment. Where theprosecution could only prove that there was persisting dispute between thetwo sides regarding the dowry paid or to be paid, both in kind and in cash,and on account of the failure to meet the demand for dowry, the wife wastaken by the parents to their house about one and a half years before herdeath and further that an attempt was made to patch up between the twosides for which a panchayat was held in which it was resolved that shewould go back to the nuptial home pursuant to which she was taken back bythe husband in his house about 10-15 days prior to the occurrence, but therewas nothing on record to show that she was either treated with cruelty orharassed with the demand for dowry during the period between her havingbeen taken to the parental home and her death, it is not permissible to takerecourse to the legal presumption under sec. 113B.

Irrespective of the fact whether the accused has any direct connectionwith the death or not, he shall be presumed to have committed dowry deathprovided the ingredients of the section have been proved. Where the deathof the wife was concurrently found to be unnatural viz. by strangulation, andthere was demand for dowry and also there was cruelty on the part of thehusband, the presumption under sec. 113B must be held to be rightly drawn(Hemchand vs. State of Haryana AIR 1995 SC 120).

In Gurbachan Singh vs. Satpal Singh: 1990 Crl LJ 562 (SC), thecircumstantial evidence showed that the wife was compelled to take theextreme step of committing suicide as the accused person had subjected herto cruelty by constant taunts, maltreatment and also by alleging that she hadbeen carrying an illegitimate child. The suicide was committed within sevenyears after the marriage. The Supreme Court held that presumption undersec. 113-B could be drawn.

In a case where the parents and the brother of the victim girl were notinformed of the death and the accused hurriedly cremated the dead body, thepresumption was held attracted: (Shanti vs. State of Haryana) (1991 Crl LJ5 1713 (SC).

In this connection, it may be noted that there are a few differencesbetween sec. 113-A and sec. 113-B. Whereas in sec. 113-A, the legislatureused the words ‘may presume’ and the words ‘having regard to all thecircumstances of the case’, sec. 113B uses the words ‘shall presume’ anddoes not use the words ‘having regard to all the circumstances of the case’.On the other hand, sec. 113B uses the words ‘soon before the death’ andthese words are absent in sec. 113A. Section 113B deals with dowry deathunder sec. 304-B, while sec. 113A deals with ‘abetment of suicide’.We do not think that sec. 113-B should use the words ‘may presume’or ‘having regard to all the circumstances of the case’. Having regard to thefact that in spite of all the new provisions introduced in 1986, dowry deathsare still a regular feature, the existing provision of ‘shall presume’ must, inour view, be retained. As stated earlier, even so, the presumption isrebuttable.

Finally, Section 112 of Indian Evidence Act is similar to the generally held presumption in laws of many countries, which presumes a child born during marriage to be fathered by the husband, and makes it difficult for a man to raise question about paternity of his child. It doesn’t use the word presume or presumption as such, but the words conclusive proof shows that the intention is in nature of shall presume rather than may presume. But of course it can be rebutted if good evidence is provided in support of assertion that the husband had no access to wife.

112. Birth during marriage, conclusive proof of legitimacy.-Thefact that any person was born during the continuance of a validmarriage between his mother and any man, or within two hundred andeighty days after its dissolution, the mother remaining unmarried,shall be conclusive proof that he is the legitimate son of that man,unless it can be shown that the parties to the marriage had no accessto each other at any time when he could have been begotten.

This section has little amount of text but it’s loaded with possibilities, so one can read more details on various examples and real life cases under Sec 112 of Indian Evidence Act in the article below:

Comments

Excellent article ViDev! Please also write a bog on POCSO case. This is the latest trend of false cases and I am facing it. Unlike 498A, DV, Rape cases there is not much info, advice, analysis available anywhere on any Mens sites. It’s high time we gain Masters degree in POCSO now!